The corporate homicide law will vastly alter how health and safety is dealt with, says DAVID LECKIE
IT HAS been a long and torturous road through Parliament, but the controversial Corporate Manslaughter and Corporate Homicide Act 2007 will come into full force across the UK on 6 April, representing one of the most significant changes in health and
safety law for more than 30 years.
In Scotland, the offence will be known as Corporate Homicide and in the rest of the UK it will be Corporate Manslaughter. However, the law is identical across the UK, despite a failed attempt by the Scottish Executive to adopt a more "radical and innovative" law for Scotland.
In a year which marks the 20th anniversary of the Piper Alpha tragedy, where 167 oil workers died on an offshore oil platform, the new law represents a dramatic shift in the way fatalities will be investigated and prosecuted. Any fatality that occurs after 6 April is very likely to lead to a police corporate homicide investigation, which could last for years. If the investigation does trigger a prosecution, the likelihood of a conviction is significantly higher than under the current law.
There has never been a successful prosecution under the existing law of corporate manslaughter (culpable homicide in Scotland) of a medium to large-sized company under the law as it presently stands. The Herald of Free Enterprise, Larkhall, Southall and Hatfield tragedies all resulted in high-profile corporate manslaughter or culpable homicide acquittals and the momentum for law reform became unstoppable. The tiny handful of successful prosecutions have been in England and these have been against very small companies.
From 6 April, all companies, of whatever size, are at risk of prosecution and conviction where there has been a fatality caused by a gross breach of a relevant duty of care and where the conduct of senior management was a substantial cause of the breach. A gross breach will occur where there is conduct by the company and its senior management falling far below what can reasonably be expected. The sort of factors a jury will consider in assessing the seriousness of the breach will be safety culture, compliance with health and safety guidance and the nature and degree of the risks involved in the company's operations.
Some campaigners argue the new law has no teeth, as the government backed down on proposals to make senior management personally liable under the Act. Although there is no individual liability and, therefore, no sentences of imprisonment under the Act, those who think it will not act as any deterrent to large businesses should think again. The fines being proposed could be a massive 2.5 to 10 per cent of gross annual turnover. The new power of the courts to order a "publicity order" will mean that companies who are convicted will have to publicise the detail of the offence and the fine in the national press, on TV or radio, in the trade press, in their annual report or in communications with clients or shareholders, at the discretion of the trial judge. The reputational damage could be enormous and the damage caused could far outweigh any fine.
The application of the new law will certainly not be restricted to high-profile disasters, such as train crashes and oil platform explosions. Nor will it be restricted purely to workplace fatalities, such as construction site deaths. The Act could be used in a wide range of situations. We have seen recently how versatile health and safety legislation can be in the recent killing by police of Jean Charles De Menezes on the London Underground and the subsequent prosecution of the Metropolitan Police for health and safety breaches. Without question, the new Act could be applied in a similarly wide manner to catch a wide range of situations.
Indeed any situation where there has been a fatality and where a company owes a relevant duty of care will come under the scrutiny of the police, who will be in charge of all investigations under the new law, with assistance for the health and safety executive, where appropriate.
Fatalities as a result of road accidents are a particular focus area for enforcers, as there are around 3,000 people a year killed on the roads in the UK, 1,000 of whom are, according to HSE statistics, driving during work. This is an important area often ignored by employers in terms of compliance with the Working Time Regulations and putting in place driving policies and risk assessments. It could only be a matter of time before a driving fatality leads to a corporate manslaughter investigation and possible prosecution.
It is important to stress that, according to the government, corporate manslaughter prosecutions will only be taken in the very worst cases. The estimates are that as far as Scotland is concerned this will be just a handful of cases a year. However, what has changed significantly is that most workplace deaths will now trigger a police corporate homicide investigation. Such investigations are lengthy, intrusive and might be very damaging to a business in terms of management time, staff morale, and reputation.
What practical steps can be taken now to prepare for the Act? Although senior management will not be in the dock on an individual basis under the new law, their actions will be under the microscope as never before. Companies must be able to provide documented evidence to any police investigation that safety is properly managed at Board level and that the senior management lead from the front on safety. The responsibilities for health and safety and lines of communication must be clear and in writing. The Institute of Directors has recently issued guidance on how this should be tackled.
As the Act looms, now is a good time look at all aspects of your safety management system and how it is managed, documented, financed, monitored and reviewed.
• David Leckie is a partner specialising in health and safety law and regulatory matters with Maclay Murray & Spens.
